Unreliable Ally

Advocates of small government shouldn’t look to the Supreme Court for help.

Robert F. Nagel

July 16, 2012, Vol. 17, No. 41

As is abundantly demonstrated by the commentary on the June 28 decision upholding Obamacare, the drama of constitutional decision-making by the Supreme Court is irresistible. Such a significant issue decided, in effect, by one man! And that man, Chief Justice John Roberts—is he a lawless sellout to political pressure or a brilliant legal statesman? Is the fundamental constitutional principle of limited national powers gone forever? Or has Roberts laid down a subtle doctrinal roadmap that will eventually allow the Court to save our republic?

The drama, of course, began long before the Court issued National Federation of Independent Business, et al. v. Sebelius. There was, for instance, the intense, decades-long strategizing that went into trying to select and confirm reliable and principled conservatives for the High Court. There was the grand theorizing about the best avenues for a legal attack on the so-called Affordable Care Act. There was the surprising questioning by the justices during oral argument. And so on. The best part is that, despite the result in Sebelius, the future holds rich potential for more such drama—more confrontations over judicial appointments, more intellectualizing about litigation strategies, more landmark cases, more disappointments, yes, but—always—more excitement and hope.

Particular cases, arguments, and individuals are not only dramatic but also, of course, important. Nevertheless, fixation on them can divert attention from more significant institutional considerations. One of the most important of these considerations is that relying principally on the Supreme Court to define and restrain the power of the national government is largely a futile exercise. Indeed, it is a capitulation to the excessive centralization that dominates our politics and our thinking.

The Supreme Court, after all, is a part of the national government. The justices are selected by the other two branches of the national government and, unlike the president and members of Congress, they need have no organizational or political ties to state or local governments. Nor can the justices be replaced through political movements based in the states. Moreover, enhancing the power of the central government over the states tends to enhance the power of the federal courts. (How many health care policies, spawned by the vast bureaucracy that will be necessary under the law just sustained, will have to be reviewed by federal judges?) Conversely, empowering states to resist federal power tends to reduce the power of the national judiciary.

Perhaps just as important, being a constituent part of the national government means that the justices identify with that government. States and localities are far away; they deal with relatively mundane issues; their leaders, operating on a smaller stage, seem less able and less significant than those who, like the justices, have risen to national prominence. True, the justices must sometimes harbor a low opinion of the national legislative process. But if the two houses of Congress, which convene just across the street from the Court’s chambers, are not to be trusted, how much worse are all those thousands of state and local legislative bodies spread out across the nation and doing, well, who knows what? If in the minds of cultivated and rationalistic jurists national politics seems only barely to conceal irrationality, disorder, and unadorned power, local politics must seem a nightmare of dark and dangerous forces.

Conservatives have, nevertheless, invested heavily in a litigation strategy for curbing the power of the national government. The dominant idea has been that the judicial branch of the federal government can be trusted with this task if its judges hold the correct constitutional philosophy. The obvious institutional reasons for doubting that the Court will respect and protect state sovereignty will be overcome, so it is thought, by a rigorous selection process. The answer is to pick justices who are deeply devoted to abstractions like the principle of enumerated and limited national power.

Republican appointees have been a majority on the Court for some four decades now, and Sebelius pretty much sums up the result. As in Sebelius, the Court’s federalism decisions contain some formulations that pay homage to our federal system and hold out some promise for constraining national power in the future. But the promises are usually limited or abandoned, as the Court approves most important exercises of national power, including laws enacted under the commerce power and the power to tax and spend. Prior to upholding the Affordable Care Act, for example, the Court approved the use of the Commerce Clause to regulate the cultivation of marijuana on private land for private medicinal use. This decision relied on and approved the reasoning in the most expansive New Deal-era Commerce Clause cases. Anyone who thinks that the Court will build on its efforts in Sebelius to define new limits to the commerce power should look at the whole record in the modern era.

Over and over again, abstract devotion to constitutional principle has been less consequential than the practicalities of the Court’s institutional position. And, as was true with Chief Justice Roberts’s role in Sebelius, the crucial votes are often cast by judicial conservatives who (in the abstract) believe in a robust federal system.

The most egregious illustration is the famous 1992 decision in Planned Parenthood v. Casey reaffirming the Court’s authority to enforce the right to abortion as a limitation on the power of state and local governments. The crucial votes came from three Republican appointees, including Justice Anthony Kennedy, now a hero in conservative circles for his vote to invalidate Obama-care. The opinion that Kennedy joined in Casey hardly attempted a serious argument for any constitutional basis for a right to abortion, emphasizing instead that reversing Roe v. Wade would threaten the Court’s position as the nation’s ultimate expositor of constitutional law. As others have pointed out, it may well be that in Sebelius Chief Justice Roberts had very similar concerns about preserving the Court’s authority as an organ of the national government.

In Casey Kennedy revealed far more than a frantic desire to preserve the Court’s authority. He articulated a deep distrust and fear of politics at the state and local level. Indeed, he depicted resistance to the Court’s rulings on abortion as anarchic efforts to undermine not just the Court’s position on abortion, but the rule of law itself. Was this a onetime overreaction unique to the abortion issue? Hardly. A few years after Casey, the Court invalidated a state law that term-limited that state’s congressional representatives. The majority opinion, with which Kennedy concurred, was so frightened by the power exercised at the state level that it conjured an image of the Congress becoming a “confederation of nations.” In his opinion, Kennedy added the supremely unlikely thought that term limits might mean that “the sole political identity of an American is with the State of his or her residence.” It seems that those dark and foreign forces out there in the states are, even for devotees of federalism like Kennedy, a threat to the very idea of nationhood.

Despite all the evidence, spanning the last 40 years, that putting principled conservatives on the Court can be expected to provide only weak and intermittent protection against excessive national power, the lure of the litigation drama is sure to continue to attract much attention and energy. But the better answer, as members of the Tea Party have intuitively understood, is proud and vigorous political organization at the state and local levels. The Sebelius decision makes that the only remedy for the overreach represented by Obamacare. But it would be a serious loss not to learn the larger lesson that politics arising from local communities across the country is also, in general, more realistic than litigation for reining in the central government.

Robert F. Nagel teaches law at the University of Colorado. Among his books is The Implosion of American Federalism (Oxford, 2001).